Ashley Baker, policy director at Committee for Justice, a non-profit organization devoted to restoring the Founders' vision of a federal judiciary governed by the rule of law and anchored by the Constitution, says Congress will ultimately have to get involved in any effort to reform the Supreme Court.
"There is nowhere near the political capital for that to actually happen," she adds.
Representatives Jerry Nadler (D-New York), Hank Johnson (D-Georgia), Mondaire Jones (D-New York), and Senator Ed Markey (D-Massachusetts) introduced legislation in April 2021 to expand the number of Supreme Court justices, but Speaker Nancy Pelosi (D-California) dismissed the legislation, saying she had "no intention to bring it to the floor."
Just days earlier, the commission was created by an executive order from President Joe Biden, who, despite having called FDR's effort to add justices to the court a "bonehead idea," wanted commissioners to discuss topics including the membership and size of the court, as well as term limits.
"I'm always surprised after I moderate events on Supreme Court reforms how many emails and Twitter messages I get from mainstream moderate Democrats saying, 'I don't agree with you on much else, but I agree with you that we should not pack the court,'" accounts Baker. "It was a very unpopular idea when FDR tried to do it, and I think it's even more unpopular now."
The Supreme Court currently seats nine justices. Those who favor adding more want somewhere in the neighborhood of 13.
"A group of former and current state [attorneys general] also came out against it," says Baker. "There is also a movement for an amendment against packing the court, and I think that actually has more inertia behind it than the court packing move itself."
The commission was set to present draft preliminary discussion materials last week, and according to the White House, the commission is examining far more than just expanding the bench.
Here is the testimony Committee for Justice President Curt Levey gave before the Commission earlier this year.